PETE LE'MON, PETITIONER V. NATIONAL LABOR RELATIONS BOARD
No. 90-400
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Tenth Circuit
Brief For The National Labor Relations Board
TABLE OF CONTENTS
Question Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 3a-13a) is reported
at 902 F.2d 810. The decision and order of the National Labor
Relations Board (Pet. App. 14a-22a), including the decision of the
administrative law judge (Pet. App. 23a-41a), are reported at 291
N.L.R.B. No. 41.
JURISDICTION
The judgment of the court of appeals (Pet. App. 1a-2a) was entered
on May 7, 1990. On August 6, 1990, Justice White granted an extension
of time within which to file a petition for certiorari to and
including September 5, 1990. The petition was filed on that date.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether the National Labor Relations Board reasonably concluded
that a union had not acted arbitrarily, in violation of its duty of
fair representation, by failing to give timely notice of a labor
dispute to mediation authorities before calling a strike and by
encouraging employees to continue the strike after they had been
discharged because of the tardy strike notice.
STATEMENT
1. Petitioner was employed at the Albuquerque, New Mexico
manufacturing plant of Aztech International, Ltd. ("the Company").
The Company's employees were represented by the Sheet Metal Workers'
International Union No. 49, AFL-CIO ("the Union"), and were covered by
a collective bargaining agreement effective until September 30, 1985.
Pet. App. 5a, 25a. In Spring 1985, the Union initiated negotiations
for a new agreement. Thereafter, the employees voted to authorize the
Union to call a strike should negotiations fail. On September 30,
Union Business Agents Gary Briggs and George Gilliland met with the
employees to discuss the Company's final contract offer. Briggs
expressed the view that the offer was inadequate. He told the
employees that their only options were to accept the contract or to
strike, and he explained that a strike entailed the risk that they
would be replaced or fired. Pet. App. 27a-28a. On October 1, the
employees went on strike, and established a picket line at the
Company's premises. Pet. App. 28a.
On the day the strike began, Company President Bennett King
hand-delivered or mailed to each of the strikers a letter stating that
the strike was illegal because the Union had failed to give proper
notice of a labor dispute to the Federal Mediation and Conciliation
Service (FMCS); /1/ therefore, the letter stated, the National Labor
Relations Act ("the Act") did not protect the strikers from discharge,
and the strikers were discharged effective immediately. The letter
added that strikers who wished to return to work would have to fill
out applications to be hired as new employees. Pet. App. 28a-29a.
When several strikers asked Briggs and Gilliland about the
Company's discharge letter, they responded that it was a "ploy" and
"rhetoric." The Union agents advised the employees to "stick
together." Briggs added that, regardless of the legality of the
strike, the strikers could prevail if they could put enough pressure
on the Company. Pet. App. 15a, 29a-30a. /2/ On October 5, an article
in a local paper reported that the Board's Regional Office had issued
an unfair labor practice complaint based on the Company's charge that
the notice was untimely. The article quoted a Board official's
assertions that the picketing was unlawful. Pet. App. 29a. After
publication of the article, Briggs and Gilliland continued to tell
strikers that the discharges were a company tactic and that the
strikers should "stick together" and try to win the strike. Pet. App.
29a.
By October 7, most of the strikers had abandoned the strike.
Briggs then told the remaining strikers that the strike had been lost
and that they should try to go back to work. Pet. App. 30a. Some
strikers who had not been replaced were rehired immediately by the
Company; others were rehired subsequently. All of the strikers who
were rehired came back as new employees. Pet. App. 30a.
Employees subsequently filed a petition with the Board's Regional
Office seeking an election to decertify the Union as their collective
bargaining representative. When the Union received the petition, it
disclaimed interest in representing the employees. Pet. App. 30a-31a.
2. Based on petitioner's charge, the Board's Regional Office issued
a complaint alleging that the Union breached its duty of fair
representation under Section 8(b)(1)(A) of the Act, 29 U.S.C.
158(b)(1)(A), by its conduct respecting the strike. Pet. App.
23a-24a. The Board (Chairman Stephens dissenting in part), in
agreement with the administrative law judge, dismissed the complaint.
Pet. App. 14a-15a.
The Board explained that, while the Union's representation here
"may not meet the standards of competence and caution that the Board
would like to see observed(,) * * * (a) breach of duty of fair
representation occurs only when the representative's conduct is
'arbitrary, discriminatory, or in bad faith.'" Pet. App. 17a (citing
Vaca v. Sipes, 386 U.S. 171, 190 (1967)). Applying that standard, the
Board unanimously agreed with the ALJ that the Union's failure
accurately to coordinate the strike with the required notice-filing
was "no more than mere negligence," and therefore did not violate the
duty of fair representation. Pet. App. 15a. /3/
The Board majority also found that the Union's conduct after
October 2 "was not so lacking of a rational or logical basis as to be
arbitrary." Pet. App. 16a. The Board explained that the Union agents
thought that job loss was a risk in any strike, and that tactically
the employees' "best protection" was to continue the strike even if
the notice was deficient. Moreover, "even if the agents had
understood that the strikers lost status as employees of the (Company)
by operation of statute or had in fact been permanently discharged * *
*, there was little they could do to benefit the employees at that
point." Pet. App. 17a. Since the employees had to apply for jobs as
new employees, the Board concluded that "(i)t was not unreasonable for
the agents to assume that collective action in seeking reemployment
would be more effective than individual action." /4/ Ibid.
3. The court of appeals agreed with the Board that the Union had
not breached its duty of fair representation. However, the court did
not pass on the Board's conclusion that the Union conduct was not
arbitrary within the meaning of Vaca v. Sipes. Rather, it held that
the duty of fair representation is not implicated when "the injury
suffered is common to the majority of represented employees." Pet.
App. 13a. The court explained that, "(a)s the duty-of-fair
representation doctrine has evolved, its function as the protector of
minority and individual employee rights, whether in collective
bargaining or in the handling of grievances, has been emphasized
consistently." Pet. App. 9a. Since "the injured party here is not an
individual or group singled out for treatment different from that
accorded the majority, but the entire class of (Company) employees
represented by the Union," the court concluded that the employees, "by
virtue of their majority status," had available to them the "powerful
remedy of ouster" -- which they used -- and thus did not need the
protection afforded by the duty of fair representation. Pet. App.
10a-11a.
ARGUMENT
Petitioner contends (Pet. i, 11-12, 19-20) that it was a per se
breach of the duty of fair representation for the Union not to fulfill
its statutory duty timely to file the Section 8(d) notice with the
FMCS and to fail to inform the employees of that default and of its
consequences prior to their decision to strike. /5/ We believe that
the Board properly applied the standard established in Vaca v. Sipes,
as elaborated in United Steelworkers of America v. Rawson, 110 S. Ct.
1904, 1911 (1990), to conclude that conduct by a union attributable to
mere negligence -- regardless of whether it violated a "mandatory"
duty -- is not "arbitrary" conduct that would constitute a breach of
the duty of fair representation. The Board was also correct in
deciding that, on the facts of this particular case, the union's
conduct both before and after the strike was fairly attributed to mere
negligence. Since the Board's rationale fully supports the judgment
below, we believe that further review is not warranted.
The Court may wish, however, to hold this case pending the Court's
review of the Fifth Circuit's decision in O'Neill v. Air Line Pilots
Ass'n, Int'l, 886 F.2d 1438 (1989), cert. granted, No. 89-1493 (Oct.
1, 1990). The Tenth Circuit in the present case upheld the Board's
decision on the theory that the duty of fair representation, as
articulated in Vaca and other decisions, is not applicable to union
conduct that, even if arbitrary, uniformly affects the majority of the
bargaining unit. O'Neill raises the issues, in the contract
negotiation context, of whether the Vaca standard is applicable and of
what criteria are appropriate for determining whether the duty of fair
representation has been breached. Although O'Neill does not directly
address the rationale adopted by the Tenth Circuit in this case,
O'Neill does present the Court with an opportunity to consider the
standards by which claims under the "arbitrariness" prong of Vaca are
to be judged. Thus, the O'Neill decision may well shed light on the
validity of the court of appeals' rationale in this case.
1. Petitioner does not dispute (Pet. 9-10) the application here of
the Vaca three-part standard for determining whether a union has
breached its duty of fair representation -- i.e., whether the union's
"conduct toward a member of the collective bargaining unit is
arbitrary, discriminatory, or in bad faith." 386 U.S. at 190. Rather,
petitioner contends (Pet. i, 19-20) that a union's failure to perform
a mandatory statutory obligation with deleterious consequences for
unit employees should be deemed arbitrary per se. In advancing this
contention, petitioner does not dispute the Board's finding that the
union's unfortunate conduct in this case was due to mere negligence;
he claims instead that the particular type of negligent conduct at
issue in this case ought to be treated as arbitrary per se, and thus a
breach of the union's duty of fair representation.
In United Steelworkers of America v. Rawson, 110 S. Ct. 1904, 1913
(1990), the Court held that an "allegation of mere negligence will not
state a claim for violation of (the duty of fair representation)." /6/
Nothing in Rawson suggests that any distinction should be drawn
between a union's negligence in failing to perform a so-called
mandatory duty (as alleged in this case) and its negligent failure to
perform other obligations (such as the contractual obligation at issue
in Rawson). As the facts here show, in the former case as well as in
the latter, the union's failure may be the result of simple negligence
that is not properly characterized as arbitrary.
Petitioner's reliance on Teamsters Warehouse Union, Local 860, 236
N.L.R.B. 844 (1978), enforced, 652 F.2d 1022 (D.C. Cir. 1981) (Pet.
11-14), is misplaced. That case did not involve any claim of
negligent failure to perform a statutorily mandated act. In
Teamsters, the union knew, but did not inform the unit employees, that
their employer would discharge them if their contractual wage demand
was successful. The Board found that the union violated its duty of
fair representation "by persisting in demanding a wage increase it
knew would result in (the employees') termination." 236 N.L.R.B. at
844 n.2. In the present case, the Union agents did not know that the
notice to the mediation service had not been timely filed, nor did
they know of the consequences of that omission at the time the strike
decision was made. However, they did inform the employees that their
jobs were at risk if they struck. Moreover, the Board majority
concluded that, after they were apprised of the notice problem, the
Union agents did not act irrationally in advising the employees to
persevere with the strike, since the Company had already discharged
them. /7/
2. Although we submit that the Board's decision was correct, the
Court may decide that, in light of the divergence between the Board's
rationale and that adopted by the court of appeals, this case should
be held for the decision in O'Neill. As we pointed out in our brief
at the petition stage in O'Neill (at 9-11), there is considerable
disarray in the courts of appeals concerning the scope of the duty of
fair representation. With regard to the question in this case, for
example, the Sixth Circuit shares the view of the Tenth Circuit that
the duty of fair representation applies only where "a member or group
(is) singled out for different treatment." NLRB v. Local 299, Int'l
Bhd. of Teamsters, 782 F.2d 46, 51 (1986) (Pet. App. 12a). The D.C.
Circuit, on the other hand, agrees with the Board that arbitrary
action directed at an entire unit may constitute a breach of the duty.
Warehouse Union, Local 860 v. NLRB, 652 F.2d 1022, 1025 (D.C. Cir.
1981); and see Alicea v. Suffield Poultry, 902 F.2d 125, 130 (1st
Cir. 1990) (differential treatment not necessary for breach of the
duty of fair representation).
Although O'Neill does not directly raise the question whether the
Tenth Circuit's rationale in this case is correct, it does offer the
Court an opportunity to consider the scope of conduct that violates
the duty of fair representation because it is "arbitrary." /8/ Thus,
the Court's decision in O'Neill may well shed light on the rationale
of the decision below -- that a union's conduct is not "arbitrary"
within the meaning of Vaca unless it adversely affects only a minority
of employees. Accordingly, the Court may wish to defer action on this
petition until O'Neill has been decided.
CONCLUSION
The petition for a writ of certiorari should be denied. In the
alternative, the petition should be held in abeyance and disposed of
in light of the Court's decision in Air Line Pilots Association
International v. O'Neill, No. 89-1493. /9/
Respectfully submitted.
KENNETH W. STARR
Solicitor General
JERRY M. HUNTER
General Counsel
D. RANDALL FRYE
Acting Deputy General Counsel
ROBERT E. ALLEN
Associate General Counsel
NORTON J. COME
Deputy Associate General Counsel
LINDA SHER
Assistant General Counsel National Labor Relations Board
NOVEMBER 1990
/1/ Section 8(d)(3) of the Act, 29 U.S.C. 158(d)(3) (Pet. App.
50a), requires a party seeking termination or modification of
collective agreement to give the FMCS notice at least 30 days before
the expiration of the contract. Section 8(d)(4), 29 U.S.C. 158(d)(4),
precludes a strike within 60 days of the requisite notice (Pet. App.
50a). Section 8(d) further provides that "(a)ny employee who engages
in a strike within (the 60 day) period * * * shall lose his status as
an employee of the (struck) employer * * * for the purposes of (the
Act)." Pet. App. 51a.
/2/ Neither Briggs nor Gilliland was aware that the Section 8(d)(3)
notice was late. Pet. App. 25a-26a. The Union's attorney, Gerald
Bloomfield, had in fact mailed untimely notice to the FMCS on
September 11, and the FMCS received it on September 17, 13 days before
the contract was to expire. Briggs attempted several times to reach
Union Attorney Bloomfield to ask about the notice, but Bloomfield was
out of town. Briggs spoke with another attorney in Bloomfield's
office but was unable to learn the date or circumstances of the
filing. Pet. App. 29a-30a. Briggs and Gilliland thought the
Company's contention that timely notice of the strike had not been
given was erroneous. Pet. App. 15a, 29a-30a.
/3/ The Board assumed, arguendo, "that a union that takes action in
'reckless disregard' of its statutory duties to unit employees
violates its duty of fair representation." Pet. App. 17a n.5.
/4/ Chairman Stephens would have found "that the Union's business
agents * * * behaved in a manner that went beyond mere negligence to
reckless disregard of the harm to the employees through actions that
they took after they were put on notice (as of October 2) of the clear
possibility that the strike notice had not been timely given and that
the (Company) was taking action against the employees because of
this." Pet. App. 20a.
/5/ Petitioner also contends (Pet. i) that it was a per se
violation of the Union's duty of fair representation not to advise the
employees of its failure to file timely notices and the consequences
of that inaction before the employees voted to reject the Company's
contract proposal and commence a strike. Since, at that point, the
Union did not know that the notices had not been timely filed,
petitioner's additional contention adds nothing to his first
contention that the Union's negligence, with its serious consequences,
breached the duty of fair representation. By contrast, Chairman
Stephens, dissenting in part from the Board's decision, would have
found the Union's conduct arbitrary only after October 2, 1985, when
it was on notice of the possible consequences of the failure to file
timely notice with the FMCS. Pet. App. 19a.
/6/ Rawson was decided on May 14, 1990, one week after the Tenth
Circuit's decision in this case. The Tenth Circuit therefore did not
have the benefit of the Rawson decision in evaluating the Board's
"mere negligence" rationale.
/7/ In a pre-Rawson decision, the Ninth Circuit held that
negligence may constitute a breach of the duty of fair representation
where (1) "the individual interest at stake is strong and the union's
failure to perform a ministerial act completely extinguishes the
employee's right to pursue his claim," and (2) "union negligence (is)
the solitary and indivisible cause of the complete extinguishment of
an employee's grievance rights." Eichelberger v. NLRB, 765 F.2d 851,
855 (1985). But, even in those circumstances, the Ninth Circuit
recognized that "courts and administrative bodies are not constrained
to find a breach, but must carefully weigh the circumstances of each
particular case in light of established principles of law." Ibid.
(explaining Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270 (9th
Cir. 1983)). See also Peterson v. Kennedy, 771 F.2d 1244, 1254 (9th
Cir. 1985).
/8/ The Court's recent cases concerning the duty of fair
representation have generally involved procedural or other issues that
do not directly implicate the standard of conduct imposed by the duty.
See, e.g., Chauffeurs, Local No. 391 v. Terry, 110 S. Ct. 1339 (1990)
(right to jury trial in duty of fair representation case); United
Steelworkers of America v. Rawson, supra (pre-emption of state law by
duty of fair representation); Breininger v. Sheet Metal Workers Int'l
Ass'n, 110 S. Ct. 424, 429-438 (1989) (relationship between unfair
labor practice claims and duty of fair representation claim);
Communications Workers v. Beck, 487 U.S. 735 (1988) (permissibility of
expenditure of union dues for non-representational activities in light
of 29 U.S.C. 158(a)(3); DelCostello v. International Brotherhood of
Teamsters, 462 U.S. 151 (1983) (statute of limitations); IBEW v.
Foust, 442 U.S. 42 (1979) (availability of punitive damages); Hines
v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976) (whether suit
against employer may be dismissed when corresponding duty of fair
representation claim against union has withstood motion for summary
judgment). Although the court has necessarily had to consider issues
concerning the scope of the duty of fair representation in the course
of deciding many of the above cases, the cases have not directly
focused on the requisite standard of conduct.
/9/ If the Court ultimately decides to remand the case to the Tenth
Circuit in light of the decision in O'Neill, we suggest that the Tenth
Circuit also be directed to consider the effect of this Court's
decision in United Steelworkers of America v. Rawson, supra.